Haug v Jupiters Limited[2007] QSC 68

SUPREME COURT OF QUEENSLAND

LYONS J:

Background

1. On 22 February 2006 the applicant was involved in an incident at the Conrad Treasury Casino Brisbane (the Casino) which is operated by the respondent. The applicant contends that security staff employed by the respondent used excessive force and injured his left wrist when they ejected him from the Casino about 4.30 am on 22 February 2006. The applicant states he has suffered permanent wrist damage which has now affected him in his career as a professional musician particularly as a rhythm guitarist with a well known, internationally acclaimed band.

2. On 5 September 2006 the applicant submitted a Part 1 Notice of Claim in accordance with the provisions of the Personal Injuries Proceedings Act 2002 (“PIPA”) by which he gave notice to the respondent that he sought to recover damages for personal injuries arising out of the incident.  On the same date the applicant also advised that a medico legal examination would occur 12 months after the date of the incident, that is, after 22 February 2007. 

3. On 20 October 2006 the respondent’s solicitors served the applicant with a s 12 Notice in compliance with s 10. The due date for the applicant to serve a Part 2 Notice of Claim was 20 December 2006. By letter dated 15 February 2007 the applicant’s solicitors enclosed a Draft Part 2 Notice, advising that the applicant was recording in the United States and that a signed Part 2 Notice would be provided after his return in March 2007.

4. On 17 January 2007 pursuant to s 22 of PIPA the applicant’s solicitors enclosed the applicant’s list of documents.  On the same day they also wrote requesting that the respondent’s solicitors provide a list of documents pursuant to s 27 in the following terms:

“1.Complete personnel and training records for each security guard involved in the incident including those persons who handled and/or “escorted” our client from the premises and Head of Security Bob Bennett.

2.All documentation relating to the incident involving our client including letters of complaint, advices memos, warnings, directives, file notes, incident reports, statements, investigation reports, minutes of meetings, correspondence with your insurers and others, and any documentation relating in any way to the incident.

3.All documentation relating to training of security staff at the casino (including documents relating to the use of force) including manuals, advices, memos, workbooks, directives, file notes, incident reports, minutes of meetings, and any other documentation (including computer based records) relating in any way to training issues.

4.All documentation relating to prior complaints involving security staff at the casino including letters of complaint, advices, memos, warnings, directives, file notes, incident reports, minutes of meetings, and any other documentation (including computer based records) relating in any way to training issues.

5.A full floor plan of the casino.

6.A floor plan of the casino indicating camera placement.

7.Copy of all footage from every camera in the “event” vicinity that night, including the period that evening leading up to the event.

8.Documents relating to previous claims brought against Jupiters Limited, Brisbane Treasury Casino, relating to excessive and/or inappropriate use of force by employees, including security personnel of the casino.

We further require the following requests for information to be answered, pursuant to Section 27 of the Personal Injuries Proceedings Act 2002, within fourteen (14) days:

9.What were the full names of all security guards involved in the incident whereby our client was handled/escorted from the premises and what role did each play? 

10.Please provide a full description of the type of restraint used including what body parts were involved and what the purpose and reason was for each type of restraint which was applied.

11.What is the identifying description of all camera/s which filmed the incident and where are they located?  e.g. “camera number ‘x’ and ‘y’ located in the foyer”.

12.Please provide full details of the type and quantity of alcohol consumed that afternoon/evening by:

(a)Our client.

(b)Any persons at the restaurant with our client that evening.

(c)Restaurant staff.

13.What was the full name and address of the other patron evicted at or about the same time as our client?

14.Please provide details of any prior complaints/problems with security guards at the Brisbane casino including:

(a) The name of the person.

(b)His/her role and a brief description of duties.

(c) The nature of the complaint/problem and who initiated any complaint.

(d) The date the complaint/problem was received or arose.”

5. No disclosure was made by the respondent and a further request was made by the applicant on 30 January 2007.  Notification was also given to the respondent that failure to respond would result in the current application to the court.  On 8 February 2007 the current originating application was filed.

This Application

6. By an amended originating application filed on 8 February 2007, the applicant seeks orders:

1. That the respondent comply with their duty to give to the applicant copies of documents in the respondent’s possession that are directly relevant to a matter in issue in the claim as required by s 27 of the Personal Injuries Proceedings Act 2002  within seven (7) days from the date of this order;

2. In accordance with s 27(1)(b) of the Personal Injuries Proceedings Act 2002 (“the Act”) that the respondent provide the information requested in the correspondence from the solicitors for the applicant to the solicitors for the respondent dated 17 January 2007;

3. The information the respondent supplies be provided within 7 days in the form of a statutory declaration in accordance with s 27(3) of the Act.

7. On 12 February 2007 the respondent provided an eviction form relating to the incident dated 24 February 2006. The respondent advised that the only “other document” relating to the incident in the possession of the respondent was a surveillance tape of the incident which had been viewed by the applicant’s representatives.

8. On 13 February 2007 the respondent requested further documents from the applicant pursuant to s 22(1)(a). In accordance with s 22(1)(b) the respondent also requested information from the applicant in relation to the events of 22 February 2006 including information in relation to events prior to the applicant’s arrival at the Casino, the nature of the injury, medical treatments, details of past and future economic loss and income for the three years prior to the incident. Pursuant to the provisions of s 22 this information must be provided within one month which is 13 March 2007 and after the date this application was heard.

9. This application therefore relates solely to the applicant’s request for disclosure pursuant to s 27.

The Contentions of the Parties

The Applicant

10. This application is clearly about the applicant’s request for a wide disclosure of documents and other information which they consider relate to the incident at the Casino on 22 February 2006. The applicant submits that the affidavit of Jason Brett Forrester establishes that the respondent maintained other records in relation to this matter. In particular he submits security officers carried personal log books in which particulars of evictions were recorded and incident reports were also made of such matters. The applicant also states that there is other written documentation about the training for security officers before they commence work at the Casino as well as application forms for licences and documents relating to access to officers criminal histories.

11. The applicant further submits that the affidavit of Mr Forrester also deposes to the fact that annual performance reviews were conducted. These reviews related to the security officer’s work, attendance, attitude, punctuality as well as complaints and general work performance. The applicant also submits that there is written documentation of all warnings given to staff in relation to the use of excessive force or where there had been complaints against a staff member.

12. The applicant submits that despite the existence of all of this documentation the only documentation which has been provided is the eviction form. The applicant submits therefore that there are other documents which are directly relevant to the issues arising in this case. He submits that these documents do exist and that the respondent has failed to disclose them.

13. The applicant also seeks records that the respondent is required to keep pursuant to the Casino Control Act 1982, namely of employee training courses, and the maintenance of a floor plan and diagram of closed circuit television systems indicating camera positions as they relate to the floor plan.

14. As well as seeking copies of documents pursuant to s 27(1)(a) the applicant also seeks further information pursuant to s 27(1)(b) of the Act. In support of the proposition that further disclosure is required by the respondent the applicant relies on the decision in Gitsham v Suncorp Metway Insurance Limited^[1] which required wide disclosure of information in relation to s 45 of the Motor Accident Insurance Act 1994 (the “MAIA”).  The applicant states that as s 27 of PIPA is similar to the provisions in s 45 the disclosure required is similarly wide.

The Respondent

15. The respondent submits however that no additional disclosure is required to be given and they rely on the applicant’s failure to deliver a Part 2 Notice of Claim as well as a failure on the part of the applicant himself to make disclosure. The respondent maintains that they complied with the s 10(1) requirements on 20 October 2006. The respondent submits that a Part 2 Notice of Claim was therefore due by 20 December 2006.

16. The respondent submits that the applicant has not disclosed any documents relating to any alleged injury nor has the applicant made any claim for past economic loss. The respondent submits that the obligations on the applicant under s 22 of PIPA provide that the claimant must within one month of giving a Notice of Claim give to the respondent copies of documents including, but not limited to, reports about the claimant’s medical condition or prospects of rehabilitation.  The respondent submits that the applicant himself has not disclosed his medical reports in his list of documents and accordingly has not provided disclosure within the time limit provided by PIPA.  The affidavit material indicates that whilst the applicant’s medical records had been requested from the applicant’s specialist they did not currently have them.

17. The respondent contends that s 27 of PIPA requires the respondent to only provide copies of documents referred to in the subsections which are directly relevant to a matter in issue in the claim.  The respondent contends that the obligation to make disclosure pursuant to s 27 of PIPA is not limitless nor is it the same as the disclosure obligations contained in the Uniform Civil Procedure Rules. The respondent contends that s 27(1)(a)(i) limits the discoverable documents to “reports and other documentary material about the incident”.  Accordingly, the respondent submits that s 27(1)(a)(i) does not impose an obligation upon the respondent to provide copies of documents or reports which are not “about the incident”.  The respondent submits that s 27(1) does not impose an obligation on the respondent to provide copies of all and any documents that are directly relevant to an allegation made in the claim.

18. The respondent submits that because the applicant seeks copies of personnel files, training records, manuals, records of prior complaints and floor plans, the documents are beyond the scope of s 27(1)(a) because they do not relate to the incident. The incident is described in the Notice of Claim as the removal of the applicant from the Casino using excessive force.

19. The respondent submits that the claim is made against the Casino and not the staff members. The respondent submits that it is for the court to determine whether the force used was excessive or not and that personal files, training records, floor plans and prior complaints are not relevant to that issue.

The Legislation

20. Turning then to the relevant legislative provisions. Section 27 of PIPA provides as follows:

“27Duty of respondent to give documents and information to claimant

(1)A respondent must give a claimant—

(a)copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim—

(i)reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

(ii) reports about the claimant's medical condition or prospects of rehabilitation;

(iii) reports about the claimant's cognitive, functional or vocational capacity; and

(b)if asked by the claimant—

(i)information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or

(ii)if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.

(2)A respondent must—

(a)give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent's possession later, within 7 days after it comes into the respondent's possession; and

(b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.

(3)If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.

(4)If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.”

21. The decisions in relation to s 45 of the MAIA are relied on by the applicant and accordingly it is necessary to consider what that section provides. 

“45Duty of claimant to cooperate with insurer

  (1)A claimant must cooperate with the insurer and, in particular -

(a)must provide the insurer with copies of reports and other documentary material (including written statements made by the claimant or by witnesses) in the claimant's possession about the circumstances of the accident or the claimant's medical condition or prospects of rehabilitation; and

(b)must give information reasonably requested by the insurer about -

1. the circumstances of the accident out of which the claim arose; and
2. the nature of the injuries resulting from the accident and of any consequent disabilities and financial loss; and
3. if applicable - the medical treatment and rehabilitation services the claimant has sought or obtained; and
4. the claimant's medical history (as far as it is relevant to the claim), and any other claims for compensation for personal injury made by the claimant.

  (2)The claimant must -

(a)provide the copies of reports and other documentary materials within 1 month after giving notice of the motor vehicle accident claim or, if the reports or material come into the claimant's possession later, within 1 month after they come into the claimant's possession; and

(b)respond to a request under subsection (1)(b) within 1 month after receiving it.

(3)If, after notice of a claim is given to the insurer but before the claim is resolved, the claimant becomes aware of a significant change in the claimant's medical condition, or in other circumstances, relevant to the extent of the claimant's disabilities or financial loss, the claimant must, within 1 month after becoming aware of the change, inform the insurer of the change.

(7)Any information provided by a claimant under this section must be verified by statutory declaration if the insurer requires it to be verified by statutory declaration.”

Decisions in Relation to s 45 MAIA

22. The applicant relies on the approach that the Queensland Courts have taken in relation to the disclosure provisions under the MAIA to submit that there is a similarly wide duty of disclosure under PIPA.  In Gitsham v Suncorp Metway Insurance Limited^[2] the insurer asked that the claimant provide details of her claim for special damages and care and to confirm that no claim was being made for economic loss.  Pursuant to s 47 they asked that this information be provided by way of statutory declaration.  It was argued before the court that the information sought by the insurer was not information within the meaning of s 45 which was reasonably requested or was not information relating to financial loss. 

23. In her reasons White J determined that a fair reading of the section compelled the conclusion that it intended to cover the whole field of what an insurer, who may become a defendant, would want to know about the claim and in short form the section covers the accident (liability including contributory negligence), the injury sustained and its sequela, financial loss, medical and rehabilitative treatment, and relevant medical history and any past claims for compensation.  Her Honour noted:^[3]

“… and this is hardly surprising if an appropriate offer of settlement is to be made either informally or, more importantly, a mandatory final offer.  An insurer at this stage does not have the benefit of pleadings to define the ambit of the claim for damages or a statement of loss and damage providing the details of the quantum of the claim.

In Edwards his Honour seemed to suggest that not all information sought under s 45 can be the subject of a request that it be verified by statutory declaration.  If the information sought is of a kind which is encompassed by the section, including that it be reasonably requested then s 45(7) enables an insurer to require it to be so verified.  There is good reason for this.  It binds a claimant to his to her claim so that an insurer might rely on it in making an offer of settlement.  If departed from otherwise than for good reason, such as a change in the claimant’s medical condition, it may have an effect on costs.”

24. Similarly in Suncorp Metway Insurance Limited v Brown^[4] it was held that that Act imposed a broad general duty on a claimant to co-operate with the insurer and that the words of s 45 in that Act should not be construed literally so that the duty was simply to co-operate with the insurer in a particular way specified in the paragraphs (a) and (b).  Rather his Honour Williams JA held that:^[5]

“When regard is had to the objects of the legislation set out in s 3, and in particular the object ‘to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents’, the intent of the legislature, in my view, was to impose a broad general duty on a claimant to cooperate with the insurer. To that end the claimant is obliged by s 37 and s 45, amongst others, to provide very detailed information to the insurer at an early stage. There is, albeit impliedly, a clear obligation on the claimant to do all things necessary to provide the insurer with the information referred to in those two sections.”

The Context of s 27 of PIPA

25. It is important to understand the context within which s 27 of PIPA operates.  Section 4(1) provides that the main purpose of the Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.  The main purpose is to be achieved generally by providing a procedure for the speedy resolution of claims for damages for personal injury to which the Act applies, promoting settlement of claims at an early stage wherever possible and ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial.  Minimising the costs of claims is also listed as one of the purposes. 

26. Section 9 then provides that before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started.

27. Section 10 sets up a regime whereby a person to whom a Notice of Claim is given must give a preliminary response to the claimant within one month essentially indicating if they are the proper respondent to the Claim.

28. Section 12 then provides that if a person (respondent) to whom a Part 1 Notice of Claim is given considers himself, herself or itself to be a proper respondent to the claim the respondent must, within the prescribed period, give the claimant written notice—(a) stating whether the respondent is satisfied that Part 1 of the Notice is a complying Part 1 Notice of Claim; and (b) if the respondent is not satisfied, identifying the non compliance and stating whether the respondent waives compliance with the requirements; and (c) if the respondent does not waive compliance with the requirements, allowing the claimant a reasonable period, of at least 1 month, specified in the notice either to satisfy the respondent that the claimant has in fact complied with the requirements or to take reasonable steps to remedy. 

29. Section 20 also provides that the respondent must take steps to resolve the claim. The respondent must inform itself about the incident alleged to have given rise to the personal injury and s 20(1)(e) specifically provides the respondent must attempt to settle the claim and is required to set out in detail the basis on which the offer is made.

30. Section 22 sets out the duty of a claimant to provide documents and information to the respondent in broadly similar terms as s 27. This application however relates to the respondent’s failure to provide the documents and information pursuant to the request dated 17 January 2007 and accordingly it is the requirements of s 27 which will be examined. As the respondent’s request for documents and information pursuant to s 22 was given on 13 February 2007 the time for compliance by the claimant had not expired at the time the application was heard.

31. It is clear that the principal object of both the Personal Injuries Proceedings Act 2002 and the Motor Accident Insurance Act 1994 is to bring about the speedy resolution of personal injury claims to avoid their determination by courts wherever possible.  The legislation is obviously intended to enable both parties to properly assess their respective prospects by imposing obligations in respect of both disclosure and the provision of relevant information. 

32. Section 22 and s 27 are in Division 2 of Chapter 2 of PIPA and the Division is titled “Obligations of Parties” and states:

“21Purpose of div 2

The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.” 

33. Section 36 relates to compulsory conferences and is in the same Chapter. It is clear therefore that the immediate objective of the procedures in Chapter 2 Part 1 must be to enhance the utility of the compulsory conference.

34. Whilst the requirement in s 27(1)(a) to provide copies of documents is automatic it is limited to documents in the respondent’s possession. Documents are widely defined in s 36 of the Acts Interpretation Act 1954 to include “any disc, tape, or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced”.  The further requirement in s 27(1)(a) is that the documents are “directly relevant to a matter in issue in the claim”.

35. Section 27(1)(b)(i) does not apply automatically but only if there is a request by the claimant. If there is such a request however then the requirement is broader and relates to information that is in the respondent’s possession “about the circumstances of, or the reasons for, the incident.” This section is not limited by the requirement that it be directly relevant to a matter in issue in the claim.

36. It should be noted that that there is an important distinction between s 27(1)(b)(i) in PIPA and s 45(1)(b)(i) in MAIA in that s 27(1)(b)(i) PIPA is in fact wider as it refers to “circumstances of, or the reasons for, the incident” whereas the similar provision in MAIA refers to just “the circumstances of the accident”. 

37. The Personal Injuries Proceedings Act 2002 and the Motor Accident Insurance Act 1994 both set up regimes whereby, before bringing an action in court for damages for personal injury, a claimant is required to give written notice of the claim to the respondent.  In order to examine whether the cases in relation to the MAIA are authority for proceedings under PIPA it is necessary first to examine that scheme.  Relevantly s 10 of the Motor Accident Regulation sets out what must be included in the Notice of Claim so far as the claimant knows or can reasonably find out at the time when notice is given, and provides that the notice must contain a statement of the nature and extent of the claimant’s loss and a statement of an amount the claimant would be willing to accept in full satisfaction of the claim or a statement explaining why the claimant is not yet in a position to make an offer of settlement.  

38. One of the stated objects of the MAIA is to encourage the speedy resolution of personal injury claims as a result of a motor vehicle accident.  Consistent with this, the insurer is required to respond within 14 days.  Reflecting the requirement to proceed expeditiously there are then a whole series of steps which must occur within a short time frame.  Again consistent with the object of the Act s 45 obliges the claimant to co-operate with the insurer and s 47 mirrors these obligations with respect to the insurer’s co-operation.  It relevantly provides that a claimant must provide copies of reports and other documentary material within one month of giving notice and within one month after they came into the claimant’s possession and each party must respond to a request to give information within one month of receiving it.  The provision requires that if the insurer requires the information to be verified by statutory declaration then a claimant must do so.  Accordingly it can be seen that the legislative framework is remarkably similar and the cases should therefore be authoritative given the similarities.

39. I accept therefore that the decisions in relation to s 45 of the MAIA provide considerable assistance in relation to the approach which should be taken in relation to broadly similar provisions in PIPA.  There are however some notable differences in the sections which cannot be ignored and ultimately the decision must turn on the particular provisions of the PIPA legislation.

40. The Explanatory Notes to the Personal Injuries Proceedings Bill 2002 make it clear that the main purpose of the Bill was to reduce the costs of legal proceedings by introducing a process by which claimants are required to comply before legal proceedings can commence in a court.  This is in fact expanded by the language of Division 2, which is titled “Obligations of the parties”.  The Explanatory Notes at clause 21 makes it clear that the purpose of that division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.  The Explanatory Notes in relation to the current s 27 also states that it requires the “respondent to co-operate with the claimant by providing information related to the claim”.^[6]

41. I accept that these requirements support a wide interpretation of the duty to provide documents and information pursuant to s 27. There are however two preliminary matters which need to be answered before it can be definitively stated how wide that duty is.

42. First, is there a difference in relation to the duty of disclosure imposed on a respondent in a personal injuries proceeding under PIPA and the duty of disclosure imposed on a claimant in a motor vehicle accident under the MAIA?  Even if it is accepted that the Acts are substantially similar it has to be noted that all of the cases referred to above related to the disclosure required of a claimant whereas in the current case the disclosure relates to disclosure by the respondent.  Is there a different standard of disclosure required as between the two Acts and as between a claimant and a respondent?

43. Given that the clearly stated purpose of the Division is to put both parties in a position where they both have enough information to assess both liability and quantum in relation to a claim, I accept that both parties have a similar duty of disclosure. If there is not an equal duty of disclosure then one of the parties would never be in a position to accurately assess both liability and quantum. Accordingly I do not consider that a distinction can be drawn in this regard. Neither do I consider that there is a different standard of disclosure as between the two Acts given the clearly similar objectives of both Acts.

44. Secondly, should there be a distinction drawn between the disclosure required by s 27(1)(a) and that required by s 27(1)(b) or should there be a broad approach such as was adopted by the court in Suncorp Metway Insurance Limited v Brown^[7] where it was held that the duty was not strictly limited to the matters specifically enumerated in s 45 of the MAIA?  The provision in s 27(1)(a)  refers to the requirement that a respondent must give copies of particular documents and the provision in s 27(1)(b) refers to the claimant’s ability to request information and to require it be given by way of statutory declaration.

45. The requirement to actually give copies of documents in s 27(1)(a) is in fact specifically restricted firstly to documents that are “directly relevant to an issue in the claim” and to reports about the claimant’s medical condition, prospects of rehabilitation, cognitive, functional or vocational capacity.^[8]  Furthermore the requirement to give copies of documents in s 27 (1)(a)(i) appears to be restricted to “reports and other documentary material about the incident alleged to have given rise to the personal injury”.  Does this mean that this restricts the type of documents which must be given to documents simply about the incident i.e. the forcible removal from the Casino? 

46. This question was considered by Ambrose J in RACQ-GIO Insurance Limited v Ogilvie^[9] where, in discussing what was meant by the term ‘circumstances of the accident’ in s 45 of the MAIA, it was held:

“In my view ‘circumstances of the accident’ are not limited to events contemporaneous with the accident observable perhaps by an independent witness having the opportunity to view it.  A circumstance of the accident is any fact to which the occurrence of the accident may be attributed.  In my view, upon its proper construction ‘circumstances of the accident’ within the meaning of s 45(1)(a) encompass  all events which appertain to or are causes of the accident in which a claimant suffers personal injury.”

47. Accordingly then in relation to the copies of documents which must be given pursuant to s 27(1)(a)(i) it is clear that the overriding requirement is first that the document must be directly relevant to a matter in issue in the claim. If one looks at the matters which are required to be detailed by the claimant in the Notice of Claim pursuant to s 3 of the Personal Proceedings Regulation 2002 then there are clearly a number of matters which could be in issue ranging from consumption of alcohol, the person the claimant considers responsible for the incident as well as the reason the claimant considers the person is responsible.   Given then the authority for a wide interpretation of what constitutes the “incident” I consider the nature of the material required to be provided by this section is broad.  It must however relate to the events which as Ambrose J stated “appertain to or are causes of” the “incident” broadly defined.    

48. In this regard then copies of documents must be given which are in the respondent’s possession which could reasonably be considered to “appertain to” or relate to the “causes of the incident”. Given that the claimant is alleging negligence on the part of the Casino I consider that this would cover the documents requested by the claimant in paragraphs 1, 2, 5, 6 and 7. I consider the documentation requested in paragraph 3 and 4 in relation to training, complaints and the previous incidents to be too remote to be “directly relevant” to either of the requirements to relate to or appertain to the incident. Similarly I consider the documents requested in paragraph 8 relating to all previous claims brought against Jupiters to be similarly too remote from this particular incident.

What is the Disclosure required by s 27(1)(b)?

49. When it comes to the information which can be requested by s 27(1)(b) however there is no such requirement that it be either “directly relevant” to a matter in issue in the claim or that it relate to the “incident which gave rise to the personal injury” to which the claim relates but rather it states that it simply has to be information “that is in the respondent’s possession about the circumstances of, or the reasons for, the incident;” which is much broader.

50. Accordingly I consider that the information which can be requested pursuant to this section is broader than the copies of documents which can be requested under s 27(1) (a)(i) but both are qualified by reference to the “incident”. The requirement in s 27(1)(a)(i) is that it has to be directly relevant to a matter in issue in the claim and that it be about the incident giving rise to the injury whereas (b) simply requires that it be about the circumstances of and the reason for the incident.  As I have indicated this is a much broader inquiry particularly as it does not have the additional requirement that it be “directly relevant” but would of course need to satisfy the overall requirement of “relevance”.

51. Ambrose J in RACQ-GIO Limited v Ogilvie^[10] also discussed the nature of the information which could be requested under s 45 in the following terms:

“It was also contended for the respondents in argument that the seeking of information about “the circumstances of the accident” does not permit questions to be asked or information sought as to the possible intoxication by alcohol or drugs of the driver of the car. It was contended that it was only the circumstances of “the incident” which could reasonably be sought and that intoxication of the driver to the knowledge of either respondent does not come within the category of “circumstances of the accident” to which s 45(1)(a) applies. In my view, such an approach is all together too narrow having regard to the overall intention of the legislation to have a claimant place the insurer in the best possible position to determine whether to wholly or partly admit or to deny responsibility for the claimants’ injuries. The object of the legislation is to have the claimant place the insurer, to the best of his or her ability, in the best position to determine whether to admit or contest liability. On the facts of the present case, the intoxication of the driver and/or of either of the claimants who were passengers in his vehicle at the time when he drove it into a pole at night time after (according to one of the respondents) in any event, having consumed both alcohol and marijuana, goes to both the question of the driver’s liability in tort and also to the responsibility of each of the claimant/passengers to bear some contribution for any injury suffered. In particular it seems that part of the injury for which the respondent, Stephens, claims compensation was caused to her after the collision with the pole when the driver drove the insured motor vehicle over her leg.”

52. As Jerrard JA observed in Suncorp Metway Insurance Limited v Hill^[11] particularly in relation to requests for information:

“Information can be reasonably requested relevant to obligations under the Act whether or not the questions seeking it appear to be fishing or in the form of interrogatories.  Some of the questions now automatically asked in the additional information form also have the appearance of ‘fishing’ and, some of being interrogatories; but this does not make the answers any less relevant.  The beneficial purpose of the legislation requires that a commonsense approach be taken both in framing questions intending to extract reasonably requested information and in answering them.”

53. Accordingly I consider that s 27(1)(b) is wide enough to allow the questions requested by the claimant in paragraphs numbered 9 to 13 except for the information requested in paragraph 12 and (c) of the letter dated 17 January 2007. I do not consider that the information requested in paragraph 14 could be said to be about the circumstances of and the reason for the incident given they relate to previous complaints and incidents.

54. Given there are wide duties of disclosure on a respondent pursuant to s 27 it follows that the requirements on a claimant in s 22 to provide documents and information are similarly wide. I note that the respondent has requested information from the claimant in its letter dated 13 February 2007 and the claimant clearly has a similar duty to provide the information which has been requested. I would agree with the recent commentators on PIPA that the whole philosophy of the Act is a “cards on the table” approach and that this clearly applies to both sides.^[12]

55. I would also endorse the approach foreshadowed by Jerrard JA, as set out above, that a commonsense approach be adopted in relation to the questions put and the answers given and that the information requested should be reasonable.

56. Overall in the particular circumstances of this case given the disproportionate amount of information that the respondent possesses in relation to the incident, there needs to be extensive disclosure of information and documentation so that both parties can be in a position to assess both liability and quantum.

57. I am however concerned as to the applicant’s insistence on absolutely strict compliance when it has not completed a compliant Part 2 Notice and has not given full disclosure particularly in relation to the nature of the injuries and the extent of the economic loss. PIPA clearly envisages a co-operative approach and the approach of the applicant has not been within the spirit of such cooperation. 

58. Should the failure by the claimant to provide the Part 2 Notice restrict the respondent’s ability to ask for the documents and information under s 27? Is a Part 2 Notice, as the respondent suggests, essentially a condition precedent to a request under s 27? I can find no such requirement in the legislation. Ultimately s 27 simply provides that the respondent must give the documents and the information within one month of a complying Part 1 Notice of Claim. I also note that s 9(3A) provides that a Part 2 Notice must be given to the person to whom the Part 1 Notice was given, within two months of the earlier of two events namely when the person complies with the Part 1 Notice or when the person who is given the Part 1 Notice is under s 13 conclusively presumed to be satisfied Part 1 of the Notice of Claim is a complying Part 1 Notice of Claim. The clear implication of this section must be that a Part 2 Notice of Claim is not a condition precedent.

59. I would therefore Order that:

1. The respondent comply with their duty to give to the applicant copies of documents in the respondent’s possession that are directly relevant to a matter in issue in the claim as required by s 27 of the Personal Injuries Proceedings Act 2002 as set out in paragraphs 1, 2, 5, 6, and 7 of the correspondence from the solicitors for the applicant dated 17 January 2007 within fourteen (14) days from the date of this order;

2. In accordance with s 27(1)(b) of the Personal Injuries Proceedings Act 2002 the respondent provide the information as set out in paragraphs 9 to 13 of  the correspondence from the solicitors for the applicant to the solicitors for the respondent dated 17 January 2007 except for that requested in paragraph 12(c);

3. The information the respondent supplies be provided within fourteen (14) days in the form of a statutory declaration in accordance with s 27(3) of the Act.

60. I will hear from the parties in relation to costs.